Kocontes v. McQuaid, No. S-09-235.

CourtSupreme Court of Nebraska
Writing for the CourtMcCormack
Citation279 Neb. 335,778 N.W.2d 410
Decision Date29 January 2010
Docket NumberNo. S-09-235.
PartiesLonnie L. KOCONTES, appellant, v. Sean K. McQUAID and Edward T. Bujanowski, appellees.
778 N.W.2d 410
279 Neb. 335
Lonnie L. KOCONTES, appellant,
v.
Sean K. McQUAID and Edward T. Bujanowski, appellees.
No. S-09-235.
Supreme Court of Nebraska.
January 29, 2010.

[778 N.W.2d 413]

James L. Beckmann, of Beckmann Law Offices, Lincoln, for appellant.

Raymond E. Walden, of Walden Law Office, and William R. Johnson, of Lamson,

[778 N.W.2d 414]

Dugan & Murray, L.L.P., Omaha, for appellees.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.


NATURE OF CASE

Lonnie L. Kocontes filed a claim for libel per se against Sean K. McQuaid and Edward T. Bujanowski after they submitted

279 Neb. 337

a letter to the Nebraska Board of Pardons discouraging it from granting Kocontes' application. The district court granted McQuaid and Bujanowski's motion to dismiss based on the absolute privilege protecting participants in judicial or quasi-judicial proceedings from the prospect of defamation actions. We consider whether the Board of Pardons is a quasi-judicial body such that absolute privilege applies to communications relating to its proceedings.

BACKGROUND

Kocontes is an attorney licensed in the State of California. Occasionally, Kocontes has represented clients on a pro hac vice basis in Florida. He has apparently been unable to obtain a license to practice law in Florida. This is at least in part because of drug-related felony convictions that occurred in Nebraska approximately 30 years ago. In the hopes of obtaining a license in Florida, Kocontes filed an application with the Nebraska Board of Pardons to pardon his prior convictions.

Kocontes' relationship with Bujanowski began sometime around September 2007, when Kocontes entered into a pro hac vice arrangement to represent him as the plaintiff in an action in Florida. By November, however, Kocontes' pro hac vice status had been revoked by the court. Kocontes asserts that the court had erroneously concluded that he was a Florida resident. Bujanowski retained McQuaid, a Florida attorney, to continue his lawsuit.

On January 28, 2008, Kocontes filed a complaint against McQuaid with the Florida State Bar, alleging that McQuaid had solicited Bujanowski at a time when Kocontes still represented Bujanowski. He also initiated a civil action in Florida against McQuaid and Bujanowski for defamation, alleging that McQuaid had made defamatory statements to Bujanowski in the process of soliciting his business and that both McQuaid and Bujanowski had made defamatory statements to an investigator in Bujanowski's lawsuit.

McQuaid and Bujanowski learned that Kocontes had a pending application for a pardon before the Nebraska Board of Pardons. They opposed the pardon, allegedly out of vindictiveness for Kocontes' suits against them. On March 6, 2008,

279 Neb. 338

McQuaid sent a letter on Bujanowski's behalf to the Board of Pardons. The letter described the relationship between the parties and alleged that (1) Kocontes' pro hac vice status in Florida was removed due to Kocontes' misrepresentations to the court, (2) Kocontes had lied about his convicted felon status when registering to vote in Florida, and (3) Kocontes was illegally practicing law in Florida and had charged exorbitant fees. Finally, the letter suggested that the Board of Pardons investigate specific rumors of illegal behavior for which Kocontes had not been charged or convicted. In the present action, Kocontes alleges that all of these statements to the Board of Pardons were false and that McQuaid and Bujanowski either knew of their falsity or acted with reckless disregard as to their truth or falsity.

Kocontes' application for a pardon was denied by the Board of Pardons on June 5, 2008. That same day, Kocontes filed suit

778 N.W.2d 415

against McQuaid and Bujanowski in the district court for Lancaster County seeking damages for the alleged libelous statements in the letter.

McQuaid and Bujanowski filed a motion to dismiss the action, alleging that Nebraska lacked personal jurisdiction over them and that the action was barred by absolute privilege. McQuaid and Bujanowski were granted a protective order delaying the need to respond to Kocontes' discovery requests until the motion to dismiss was disposed of. The court denied Kocontes' motion to compel discovery to prove additional contacts and defamatory statements in Nebraska. Ultimately, the motion to dismiss was granted, with the district court's reasoning that an absolute privilege protected the statements. Kocontes appeals.

ASSIGNMENTS OF ERROR

Kocontes assigns that the district court erred when it (1) granted the motion to dismiss and (2) overruled Kocontes' motion to compel discovery.

STANDARD OF REVIEW

Whether a communication is privileged by reason of its character or the occasion on which it was made is a question

279 Neb. 339

of law.1 An appellate court resolves questions of law independently of the determination reached by the court below.2

An appellate court reviews de novo a lower court's dismissal of a complaint for failure to state a claim.3

On appellate review, decisions regarding discovery are generally reviewed under an abuse of discretion standard.4 A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.5

ANALYSIS

Dismissal under Neb. Ct. R. Pldg. § 6-1112(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.6 When analyzing a lower court's dismissal of a complaint for failure to state a claim, an appellate court accepts the complaint's factual allegations as true and construes them in the light most favorable to the plaintiff.7 In this case, the court determined that the statements were absolutely privileged and that therefore, even if the allegations in the complaint were true, the statements could not form the basis of a defamation action. The court also found that no reasonable possibility existed that Kocontes would be able to correct the deficiency in his petition.

On appeal, Kocontes asserts that absolute privilege should not apply to complaints to the Board of Pardons. He argues

778 N.W.2d 416

that the Board of Pardons is not a quasi-judicial body and that, in any event, letters by strangers to the proceedings should not

279 Neb. 340

be protected by the privilege. Even if the letter was protected, Kocontes asserts he should have been allowed to amend his complaint to assert the tortious interference with a business expectancy. Finally, he asserts he should have been allowed to discover any possible nonprivileged communications made by McQuaid and Bujanowski with Nebraska.

ABSOLUTE PRIVILEGE

An absolutely privileged communication is one for which, by reason of the occasion on which it was made, no remedy exists in a civil action for libel or slander.8 Absolute privilege attaches to defamatory statements made incident to, and in the course of, judicial or quasi-judicial proceedings if the defamatory matter has some relation to the proceedings.9 The relevancy of the defamatory matter is not a technical legal relevancy but instead a general frame of reference and relationship to the subject matter of the action.10

Absolute privilege stems from a public policy determination that weighs the public interest in free disclosure against the harm to individuals who may be defamed.11 There are certain relations of life in which it is so important that the persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly.12 As will be illustrated further below, the privilege applies to witness testimony in a judicial proceeding, but it also applies to statements preliminary or ancillary to judicial or quasi-judicial proceedings.

In Shummway v. Warrick,13 we defined what is quasi-judicial for purposes of applying absolute privilege and held

279 Neb. 341

that "`[w]hen the law commits to any officer the duty of looking into facts and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the function is quasi-judicial.'" We note that several other courts use a similarly broad definition that focuses on the ability of a board or tribunal to decide matters based on the application of human judgment to some sort of factual investigation.14

Nevertheless, it has been said that there is "`"no clear definition" of what constitutes a quasi-judicial proceeding before a quasi-judicial body.'"15 In addition to the definition set forth in Shummway, we also find useful six principal attributes considered by other courts in making a determination as to whether a body is quasi-judicial: (1) the power to exercise judgment and discretion; (2) the power to hear and determine or to ascertain facts

778 N.W.2d 417

and decide; (3) the power to make a binding order and judgment; (4) the power to affect the personal or property rights of private persons; (5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of the issues at a hearing; and (6) the power to enforce decisions or impose penalties.16 A quasi-judicial body need not possess all six powers, but the more powers it does possess, the more likely it is to be acting in a quasi-judicial manner.17

We have considered a wide variety of entities as quasi-judicial bodies for purposes of absolute privilege, although we have never before specifically addressed the Board of Pardons. For example, in Shummway,18 we held the privilege applied to

279 Neb. 342

a letter written by a banker to the state banking board. The board was considering a businessman's application for a charter to start a new bank. In concluding that the board was quasi-judicial, we observed that it was charged with making the...

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16 practice notes
  • John Doe v. Bd. Of Regents Of The Univ. Of Neb. ., No. S-09-256.
    • United States
    • Supreme Court of Nebraska
    • August 27, 2010
    ...2008). 5See Neb.Rev.Stat. § 25-217 (Reissue 2008). 6See McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009). 7Id. 8Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). 9See, Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005); Kellogg v. Nebraska Dept. of Corr. Servs., 269 N......
  • Behrens v. Blunk, No. S-10-342.
    • United States
    • Supreme Court of Nebraska
    • December 30, 2010
    ...v. Weir, 254 Neb. 517, 577 N.W.2d 287 (1998); Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997). 2 Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). 3 See D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010). 4 Sentis Group, Inc., Coral Group, Inc. v. Sh......
  • McKinney v. Okoye, No. S–10–722.
    • United States
    • Supreme Court of Nebraska
    • December 16, 2011
    ...county attorney.--------Notes: 1. See Dobrovolny v. Ford Motor Co., 281 Neb. 86, 793 N.W.2d 445 (2011). 2. Id. 3. See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). 4. See id. 5. See Kersenbrock v. Security State Bank, 120 Neb. 561, 234 N.W. 419 (1931). See, also, Bhatia v. Debek......
  • Funk v. Lincoln-Lancaster Cnty. Crime Stoppers, Inc., No. S-15-743.
    • United States
    • Supreme Court of Nebraska
    • September 9, 2016
    ...284 Neb. 131, 816 N.W.2d 742 (2012).2 See, id. ; Scholl v. County of Boone, 250 Neb. 283, 549 N.W.2d 144 (1996).3 See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).4 See Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951, 653 N.W.2d 813 (2002).5 Turner v. Welliver ......
  • Request a trial to view additional results
17 cases
  • John Doe v. Bd. Of Regents Of The Univ. Of Neb. ., No. S-09-256.
    • United States
    • Supreme Court of Nebraska
    • August 27, 2010
    ...2008). 5See Neb.Rev.Stat. § 25-217 (Reissue 2008). 6See McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009). 7Id. 8Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). 9See, Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005); Kellogg v. Nebraska Dept. of Corr. Servs., 269 N......
  • Behrens v. Blunk, No. S-10-342.
    • United States
    • Supreme Court of Nebraska
    • December 30, 2010
    ...v. Weir, 254 Neb. 517, 577 N.W.2d 287 (1998); Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997). 2 Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). 3 See D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010). 4 Sentis Group, Inc., Coral Group, Inc. v......
  • McKinney v. Okoye, No. S–10–722.
    • United States
    • Supreme Court of Nebraska
    • December 16, 2011
    ...county attorney.--------Notes: 1. See Dobrovolny v. Ford Motor Co., 281 Neb. 86, 793 N.W.2d 445 (2011). 2. Id. 3. See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010). 4. See id. 5. See Kersenbrock v. Security State Bank, 120 Neb. 561, 234 N.W. 419 (1931). See, also, Bhatia v. Debek......
  • Funk v. Lincoln-Lancaster Cnty. Crime Stoppers, Inc., No. S-15-743.
    • United States
    • Supreme Court of Nebraska
    • September 9, 2016
    ...284 Neb. 131, 816 N.W.2d 742 (2012).2 See, id. ; Scholl v. County of Boone, 250 Neb. 283, 549 N.W.2d 144 (1996).3 See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).4 See Bradley T. & Donna T. v. Central Catholic High Sch., 264 Neb. 951, 653 N.W.2d 813 (2002).5 Turner v. Welli......
  • Request a trial to view additional results

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